Complainant

Respondent

Anonymised Parties

A Manager

A Dry Cleaners

Representatives

None

None

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00005585-001

30 June 2016

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00005585-002

30 June 2016

Complaint seeking adjudication by the Workplace Relations Commission under section 81(e) of the Pensions Act, 1990 as amended by the Social Welfare (Miscellaneous Provisions) Act 2004

CA-00005585-003

30 June 2016

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00005585-004

30 June 2016

The complainant commenced working for the respondent on the 29th March 2004 and this ended on the 18th January 2016. She worked one day a week, earning €90 a week. She asserts that there was discrimination, harassment and victimisation on the grounds of age and gender. She submits that she was constructively dismissed and has a claim under the Terms of Employment (Information) Act. The respondent denies the claims.

The complainant outlined that this was a case of constructive dismissal. She had been the manager of the laundrette and her role changed to that of laundry assistant. Her employment commenced on the 29th March 2004 and there had been a transfer of undertaking on the 29th September 2014. The complainant confirmed that a named limited company was listed on her pay slips as her employer, while her contract of employment referred to a different limited company.

The complainant outlined that she had job-shared the role with a colleague, who was her daughter. The complainant was in charge of customer service, sales and the assembly of finished garments. She managed the cash at the end of each day and was responsible for day-to-day banking. She was also responsible for quality control, security and for managing annual leave and sick leave of between six to eight staff. She helped in the laundry when it was busy.

The complainant outlined that the respondent appointed an operations director to the dry cleaners and this was the brother-in-law of the company director. He was sent to manage all aspects of the shop and took over four or five months after the transfer. The complainant trained him in. The complainant said that she lost her managerial status in January 2015 and there was no loss in her pay.

The complainant outlined that the shop was quiet in late 2014, but things improved over Christmas. The company director and the operations director removed special offers so the shop was quiet again in early 2015. They reduced the pensioner discount and increased prices.

In respect of her interactions with the operations director, the complainant said that he told her he wanted to get a younger, taller person to work on the counter to project a “nicer image”. He then sent the complainant to work in the laundry area. In this role, she loaded and unloaded the washing machine, emptied bins and washed floor and counters. She would only serve customers when the operations director was not available. He took control of the dry cleaning side. Nothing had been put in writing about this change.

In respect of her allegation of bullying, the complainant said that she had been undermined in front of staff and customers. On a daily basis, the operations director would say that they should charge more for “larger” customers, including long-term customers. The operations director did not stick to the price list and there was an “open-item” button on the till. The operations director would set unrealistic timelines, for example in doing laundry or assembling dry cleaning. He would go to a public house and return, having consumed alcohol. There was daily intimidation, for example the complainant was told “you’re a f***ing idiot” and “you’re a dope”. She was criticised for how she did things and the operations director threatened to bring in “foreign workers”. The operations director also made inappropriate sexual references and would say what he would like to do to female customers. He spoke a lot about a high-profile murder trial then underway.

The complainant said that on the 2nd April 2015 the operations director had been in the public house, while certain dry cleaning could not be found. The complainant phoned the operations director as the customer needed this urgently. He hung up her call. A colleague, the complainant’s daughter, came in to locate the order. The operations director returned and was angry. He said to the complainant “look at the rail, you thick.” The order had been found in the office and the complainant said that she had borne the punishment as the operations director was angry and drunk.

In respect of the events of the 4th June 2015, the complainant said that at 9.30am, she had been assembling an order when the operations director entered. He was saying “mat, mat, mat” and was angry that the mat was in the wrong position. The operations director swore at the complainant, who was shocked and went to stand beside a male colleague. He continued to shout abuse at her. She then lodged a formal complaint to the company director. This is the email of the 6th June 2015. She received the response of the 26th June 2015 and was not satisfied. She then believed that there was no point in trying to complain.

In respect of the events of the 1st October 2014, the complainant said that this occurred one week after the transfer of undertaking. She was working overtime as a colleague was on annual leave. The operations director asked the complainant why she was being quiet and commented that he could have a queue of “Chinese” workers at the door. This was discrimination on grounds of her race, i.e. being Irish.

On the 14th May 2015, the complainant said that her daughter came into the premises and met the company director, who was holding a baby’s christening gown. He commented “what do you think of your mum’s wedding dress?”, a comment the complainant said was discrimination against her height. Her daughter went quiet and the complainant felt humiliated.

The complainant said that on a daily basis, the operations director would hang dry cleaning on a high rail, usually used to hang curtains. This made it hard for her to collect the garments as she had to get them down. This was amusing to the operations director and the company director as they laughed when they saw this. She said that garments other than curtains should be hung on the lower rail. The complainant said that there is a pulley to lower the high rail but this was too heavy for her to use.

The complainant said that there had been four female staff before the transfer of undertaking, all of whom submitted bullying claims. It was a tense, uptight place to work and the complainant resigned in January 2016, as she could not take it any more. She had spoken to the company director on many occasions and he said that she should bear with him. He referred to doing a favour for a family member. The complainant thought the company director would sort the operations director out. She felt that there was no hope after she made the complaint. They had to work with the operations director on their own, while the company director would come into the premises a couple of mornings a week. He would go to the office. She commented that the company director was nice until the formal complaint was made, but he appeared to be afraid of the operations director.

The complainant said that she had started with the respondent at age 16. Following her resignation from the respondent, she took a temporary role in another dry cleaners between the 2nd February and 9th July 2016. She started from scratch, doing the laundry and dry cleaning. She was paid €12 per hour and worked 12 hours per week.

The complainant said that she worked 7.5 hours per week at the time of the transfer of undertaking and this increased to 18 hours per week. In October 2015, this reduced to 7.5 hours per week as the respondent took on Polish and Brazilian staff.

In respect of the complaint made pursuant to the Terms of Employment (Information) Act, the complainant said that there were no constant hours after the transfer of undertaking. She was not provided with an employee handbook and the company director said that that the respondent would not be standing by the transferor’s handbook.

In reply to the company director, the complainant said that her role had changed following the transfer, where she only now did laundry and cleaning. There was nothing in writing about the operations director’s role. She had never seen the grievance and disciplinary policy and these documents were not supplied to her. She worked Mondays after her daughter left but there were no set days. The company director never asked about bullying after the June 2015 incident.

In respect of the text message of the 16th October 2015, the complainant outlined that she had informed the company director that she was unhappy with the role in June 2015. It was difficult to get the dry cleaning done on Mondays and she asked for more hours to finish the work. She wanted to work other days and be off the books. The complainant referred to complaints made by other staff members.

The company director outlined that he took over the business on the 24th September 2014 and clarified the corporate identity of the respondent. It was a small dry cleaners and employed one dry cleaner. This person and another member of staff would perform all of the duties, including assembly and the counter. The company director said that he explained to staff that the operations director would join the business to make it a success. He also explained to staff that everyone would keep their roles. Nothing changed when the respondent took over.

Replying to the evidence of the complainant, the company director said that it would be difficult for the operations director to individually price items because of the point of sale system used by the respondent. He outlined that the complainant’s allegations about the operations director did not happen.

In respect of the complainant’s complaint of June 2015, the company director said that he had a conversation with the complainant on the 4th June 2015. This was followed by the formal complaint. He explained that there is a mat adjacent to the shop door that should be pulled across. On the day of the incident, it was not pulled across the front of the door. On receipt of the complaint, the company director interviewed the complainant, the operations director and the dry cleaner. The dry cleaner said that he was not aware of any incident. He had been 15 feet away and had not seen any incident. The operations director had asked the dry cleaner to put the mat across the door and the dry cleaner was unaware of any argument. The company director said that the operations director had been angry but was not aggressive.

The company director said that the complainant worked on Mondays and this was the day they did the laundry for a named client. This was the business’ busiest day. He had checked with the complainant whether everything was going okay. He said that after the incident of the 4th June 2015, the complainant and the operations director had a conversation and moved on. He spoke with the complainant on a constant basis to see if everything was okay. He said that the grievance procedure had been shared with staff. The company director said that the notes of the interview with the complainant were not shared with her. The company director commented that the complainant’s account regarding the 4th June 2015 given at the adjudication was different to what she had said before. He had dealt with the complaint immediately and he had taken it as far as he could.

The company director said that everything was fine until the complainant left the respondent to work for another dry cleaners. She told him that she had started new employment. There was no animosity when she resigned. He referred to her emailed resignation of the 21st January 2016, which gives her best wishes to the operations director.

In reply to the complainant, the company director said that the high rail was used to hang large items, such as wedding dresses. There had been no other complaints about comments made by the operations director. He accepted that he had made the comment regarding a child’s dress but this had been banter with the dry cleaner and not with the complainant’s daughter. There had been no complaint about this at the time.

The company director said that the message of the 16th October 2015 related to the complainant looking to work Mondays. They had not pushed the complainant around. In one message referring to bullying, the company director said that the reference to working could mean working elsewhere. In respect of a second message, the company director commented that there was no reference to him or the operations director and this staff member was not present at the adjudication. In respect of the third message, the company director said that this requires context.

The operations director gave evidence. He outlined that they moved into the dry cleaners 2.5 years ago at a time when the business was underperforming. The previous owner had never been there. It was a small business so everyone did everything. He outlined that the complainant had presented a list of preposterous allegations against him. He believes that the complainant hates him on a personal level. The complainant had told him that she had been offered other work and she left the respondent for better things.

In cross-examination, it was put to the operations director that he had subjected the complainant and her family to bullying and to putting them down; he replied that this was not true. It was put to the operations director that he would go to the pub and return to the respondent premises drunk; he replied that this was not true. It was put to the operations director that he called Irish women “heifers”; he denied this and said that his mother and sister-in-law were Irish. It was put to the operations director that all the female staff had made complaints about him; he said that one named colleague had left to take up other employment. He said that the complainant had orchestrated this against him. It was put to the operations director that he had been looking for staff to leave and that he would bring in Chinese staff on €6 per hour; he replied that this was a reference to competitors employing people off the books and paying them €6 per hour. He commented that he did not know how much the complainant was paid. The operations director contrasted the complainant’s role with that of her husband as her role was still in existence and his role had been redundant. The operations director denied that the incident of the 1st October 2014 took place and he had not known how much the complainant was earning. The contents of a text message of the 8th October 2015 from the complainant to a colleague were put to the operations director; he replied that this colleague could only work 20 hours per week and was already working elsewhere. She was to work on Saturdays. He said that the message was just words on a page and did not constitute evidence. It was put to the operations director that he returned to work from the pub and behaved aggressively, calling her “thick”; he replied that this was not true. It was put to the operations director that he had demoted the complainant as manager; he replied that he had not taken over roles from the complainant and took over the function of quality control. He denied interrupting the complainant’s breaks and he always allowed people to take their breaks.

The operations director was asked why would the complainant leave a manager role to take on an ironing role elsewhere; he replied that the complainant had informed him she was getting more hours in her new employment. The complainant replied that she was not working for her new employer before the end of her employment with the respondent. The “examples of bullying” and “examples of discrimination” were put to the operations director; he replied that they were blatant lies and character assassination. He said that the dry cleaner would have put items on the high rail. He would not mock people regarding their height. He commented that a competitor had looked at acquiring the respondent with a view to making redundancies. He said that the incident of the 2nd April 2015 were blatant lies and he had worked in retail for 30 years. He described the account of the mat incident of the 14th June 2015 as a lie. There had been discussion about the mat. It was the only complaint made by the complainant and this had been dealt with by a full investigation. In respect of the high rail, the operations director said that the complainant had shown him how to use it and there was no comedy in this. It was put to the operations director that the complaint made by the complainant had not been addressed so there was no point in making further complaints; he replied that the complainant had made one complaint and this was investigated. It was put to the operations director that the complainant had worked at the premises for 30 years and for 10 years with the respondent’s predecessor; he replied that there were now the same number of staff in place as before. It was put to the operations director that the complainant had moved to a role for fewer hours and as maternity cover. It was put to the operations director that an advertisement placed by the respondent for an internship showed a lack of willingness to pay wages; he accepted that the respondent had placed the advertisement and it had been to bring in another dry cleaner to help their dry cleaner as they were in talks to acquire another dry cleaning business. They did not hire anyone in the end.

CA-00005585-001 Unfair Dismissals Act

The complainant outlines that she resigned because of her interactions with the operations director, an employee of the respondent. In her email of the 6th June 2015, the complainant refers to her unfinished conversation with the company director of the previous Thursday. She raises how the operations director interacts with her, in particular to the incident that left her upset and shaken. She refers to this taking place after the respondent took over the business and that it is extremely stressful. The company director’s reply refers to initiating a full formal investigation into the complaints contained in the email. The company director wrote to the complainant on the 25th June 2015, where he concludes that there is a need for better communication and stronger collaboration between all parties. The complainant resigned on the 18th January 2016. This is a case of constructive dismissal.

There was a conflict of fact between the parties whether the respondent had supplied a grievance procedure to the complainant. I find the grievance policy was not provided to the complainant. I reach this finding because the policy exhibited by the respondent refers to a summary of the meeting being shared with those in attendance. The complainant was not supplied with such a summary after her meeting. I infer that this would have happened had this policy been in use at the time of the complainant’s June complaint.

The classic formulation of the legal test in respect of constructive dismissal was provided by the UK Court of Appeal in Western Excavating (ECC) Ltd v Sharp [1978] IRLR 27. This laid out two tests, referred to as the ‘contract’ and the ‘reasonableness’ tests. It summarised the ‘contract test’ in the following terms: “If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any other performance.” The ‘reasonableness test’ assesses the conduct of the employer and whether it “conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so the employee is justified in leaving.”

In respect of repudiation of contract, the Supreme Court in Berber v Dunnes Stores [2009] 20 E.L.R. 61, held that the test of whether an employer had breached the implied term of mutual trust and confidence in the contract of employment was an objective one. Finnegan J. held:

“1. The test is objective. 2. The test requires that the conduct of both employer and employee be considered. 3. The conduct of the parties as a whole and the accumulative effect must be looked at. 4. The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.”

In respect of reasonableness, the Employment Appeals Tribunal in An Employee v An Employer (UD1421/2008) held:

“In advancing a claim for constructive dismissal an employee is required to show that he or she had no option in the circumstances of her employment other than to terminate his or her employment. In effect the relevant section reverses the burden of proof for an employer set out in section 6(1) of the Act. The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his/her employers. The employee would need to demonstrate that the employer’s conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable.”

In Murray v Rockabill Shellfish Ltd [2012] E.L.R. 331, the Employment Appeals Tribunal held at page 333 as follows:

“The Tribunal must consider whether because of the employer’s conduct the claimant was entitled to terminate his contract or it was reasonable for him to do so. An employee is entitled to terminate the contract only when the employer is guilty of conduct which amounts to a significant breach going to the root of the contract or shows that the employer no longer intends to be bound by one or more of the essential terms of the contract. In the case of Brady v Newman UD330/1979, the Tribunal stated at pp 9-10:

“… an employer is entitled to expect his employee to behave in a manner which would preserve his employer’s reasonable trust and confidence in him so also must the employer behave.”

I have addressed the substance of the harassment claim below. I have found that the complainant was not supplied the grievance procedure. Even with the findings made in the complainant’s favour, I find that the matters complained of were not of such significance to amount to an immediate repudiation of contract. It fell to the complainant to raise these matters internally, a step she took on one occasion. While the complainant did not agree with the respondent’s report on the June 2015 grievance, the respondent did address her complaint. For the complaint of constructive dismissal to succeed, it was reasonable to expect the complainant to raise these issues again in late 2015 and before her resignation.

CA-00005585-002 Terms of Employment (Information) Act

This is a complaint made pursuant to the Terms of Employment (Information) Act. The complainant asserts that she was not notified of a change in the terms of her employment regarding her role and the times of her breaks. She asserts that her duties were restricted to laundry duties.

The Terms of Employment (Information) Act requires that employees be given certain information and be notified in writing of changes to the terms. Section 3(1)(d) requires that the employee be notified of “the title of the job or nature of the work for which the employee is employed”. The complainant referred to her changed role and her diminished duties. I accept that complainant’s evidence that her role changed and that she was not notified in writing of the changed nature of her work. It follows that that complaint is well founded and noting the scale of the breach, I award the complainant redress of €360.

CA-00005585-003 Pensions Act

This complaint is made pursuant to the Pensions Act and refers to discrimination on the gender and age ground. It refers to the respondent jeering about the complainant’s height. This is not related to the complainant’s access to an occupational pension. The claim is a duplication of the complaint made pursuant to the Employment Equality Act (reference CA-00005585-004). I deem the complaint made pursuant to the Pensions Act to be not well founded.

CA-00005585-004 Employment Equality Act

This is a complaint made pursuant to the Employment Equality Act. The complainant asserts that she was discriminated against on grounds of her gender and age and that she had been victimised. She refers to harassment on these grounds. There was a very significant conflict in evidence between the parties as to what was said and the tenor of comments made about the complainant. Having considered the evidence closely, I am persuaded that the account given by the complainant is accurate. I note the consistency of her evidence, corroborated by the family member who attended this adjudication. I find that the complainant was subject to ongoing harassment in relation to her gender. I award the complainant the equivalent of six month’s remuneration, i.e. €2,340.

For completeness, I find that the complaint of discrimination does not succeed. Her changed role and working conditions were not because of her gender or age. The complainant has also not made out a case of victimisation.

CA-00005585-001

For the reasons set out above, I find that the complaint made pursuant to the Unfair Dismissal is not well founded.

CA-00005585-002

I find that the complaint made pursuant to the Terms of Employment (Information) Act is well founded and the respondent shall pay to the complainant redress of €360.

CA-00005585-003

I find that the complaint made pursuant to the Pensions Act is not well founded.

CA-00005585-004

I find that the complaint of harassment made pursuant to the Employment Equality Act is well founded and the respondent shall pay redress of €2,340 to the complainant.

I find that the complaints of discrimination and victimisation made pursuant to the Employment Equality Act are not well founded.

Unfair Dismissals Act / constructive dismissal

Terms of Employment (Information) Act / Change of nature of work

Employment Equality Act / Harassment